Virtual Community Standards

Mike Godwin from the November 1994 issue

(Page 2 of 2)

In the 21 years since Miller v. California, it has been held to be constitutional to prosecute any porn vendors located in more liberal jurisdictions who have knowingly or intentionally distributed obscenity into conservative jurisdictions. (This has included not only printed matter and videotapes but also scrambled television signals delivered directly to subscribers' homes.) Many large-scale commercial porn vendors have made deliberate decisions not to distribute their materials into jurisdictions likely to prosecute--postal inspectors frequently engage in "sting operations to test whether a vendor will send obscene material into their states.

But the Thomases' case is different. Consider: A seller of adult magazines normally makes a conscious decision to send his product into the jurisdiction in which he's prosecuted, thus establishing criminal intent for the purpose of an obscenity- distribution prosecution. In contrast, a BBS operator may be wholly unaware of the distribution--it may occur overnight, for example--due to the automatic operation of his software.

What's more, even if the Thomases attempted to screen their users on a state- by-state basis, there's no guarantee that this attempt would protect them--a user could simply lie about which state he is calling from, or he could obtain a membership while living in California yet maintain it after he moves to Tennessee. Since a BBS operator cannot block out calls from conservative jurisdictions, there is inherent vulnerability for a BBS operator that exceeds that for traditional pornography distributors. While the Thomases' conviction with regard to the UPS-delivered video is likely to stand on traditional grounds, their convictions with regard to the downloaded images raise a number of critical issues.

For example, does it make sense for a court to infer a defendant's criminal intent to distribute obscenity into Tennessee merely because neither he nor his BBS can ensure that someone cannot download that material into the state? And does it make sense to define "community standards solely in terms of geographic communities? Now that an increasing number of Americans find themselves participating in "virtual communities on services such as America Online, CompuServe, Prodigy, and the WELL, does it make sense to have what those citizens are allowed to bring into their own homes be dictated by the arbitrary fact of where their physical homes happen to be?

More important, the case turns the whole community-standards doctrine on its head. If it's wrong for New York City to set the standards for Norman, it's surely just as wrong for Memphis to set the standards for Milpitas.

Until those issues are addressed, this case will have a chilling effect all over the country, as BBSs either censor themselves or cease operations in order to avoid prosecution. The case sends a frightening message to virtual communities: "It doesn't matter if you're abiding by your own community's standards--you have to abide by Memphis's as well. At the same time, both the Thomas case and the Lawrence Livermore case signal new opportunities for prosecutors who are increasingly uninterested in going after traditional adult book and video stores: Bust someone for online porn and you'll make national headlines.

What those cases signal about freedom of expression in this country is clear. The high court's attempt in Miller to escape the choice between setting a national standard for obscenity and abolishing obscenity law altogether has led to a constitutional regime in which the most conservative jurisdictions in the country can set the standards for the rest of us. Which means that so long as the press shows an appetite for this kind of story, and so long as prosecutors are ready to feed that appetite, no carrier of online sexual materials in any jurisdiction is safe.